State v. Bailey , 2012 Ohio 3447 ( 2012 )

[Cite as State v. Bailey, 2012-Ohio-3447.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97329
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DECO BAILEY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-550232
BEFORE: Blackmon, A.J., Boyle, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: August 2, 2012
-i-
ATTORNEYS FOR APPELLANT
Joseph C. Patituce
Megan M. Patituce
Patituce & Associates, L.L.C.
26777 Lorain Road, Suite 708
North Olmsted, Ohio 44070
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Justin S. Gould
Edward D. Brydle
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, A.J.:
{¶1} Appellant Deco Bailey appeals his convictions and assigns the following
errors for our review:
I. The defendant was denied due process of law where the prosecutor
repeatedly engaged in prosecutorial misconduct by vouching for the
credibility of a testifying co-defendant. (Tr. 346, 386, 387).
II. The defendant was denied due process of law when the court
permitted, over defendant’s objection, an instruction to the jury
regarding aiding and abetting where the state failed to produce any
evidence to support the instruction. (Tr. 250, 282, 317-318).
III. The defendant was denied due process of law where the court
refused to admit the police report as an exhibit at defendant’s request
pursuant to Ohio Evidence Rule 803. (Tr. 174-212, 298-99).
IV. The defendant was denied due process of law when the court denied
defendant’s motion to dismiss where the state failed to bring defendant
to trial within the mandates of the Sixth and Fourteenth Amendments to
the United States Constitution as well as Section 10, Article 1 of the
Ohio Constitution and Ohio Revised Code Section 2945.71. (Tr. 359).
V. The defendant was denied due process of law where his conviction
was not supported by legally sufficient evidence. ( Tr. NA).
VI. The defendant was denied due process of law where his conviction
was against the manifest weight of the evidence. (Tr. NA).
{¶2} Having reviewed the record and pertinent law, we affirm Bailey’s
convictions. The apposite facts follow.
{¶3} On May 19, 2011, the Cuyahoga County Grand Jury indicted Bailey for drug
trafficking, drug possession, and possession of criminal tools, which had forfeiture
specifications attached. Additionally, Bailey was indicted for tampering with evidence;
his jury trial commenced on August 17, 2011.
Jury Trial
{¶4} East Cleveland police officer Seana Kelly and her partner passed a parked
vehicle with expired tags. Officer Kelly made a u-turn; at which time, she observed a
man and a woman exiting a suspected drug house. The vehicle at issue was parked at the
house. The two individuals entered the vehicle with the expired plates and proceeded to
drive away. The female was observed driving the vehicle. Upon activating the sirens
and lights, the passenger began to fidget and leaned towards the vehicle’s center console.
{¶5} The officers exited the patrol car, approached the stopped vehicle, and
advised the driver, later identified as Betty Williams, that she had been stopped for
driving with expired plates. When Officer Kelly asked Williams to step out of the vehicle
and to produce identification, the response was muffled. Officer Kelly suspected that
Williams might be concealing drugs in her mouth and ordered her to expectorate.
Williams complied, and a small bag containing several rocks of suspected crack cocaine
fell to the ground. Williams indicated she had purchased the crack cocaine from the
house she had just left; she stated that the seller was in the house, and she offered to
cooperate in apprehending the seller. Tr. 188.
{¶6} Officer Kelly stated that the passenger, later identified as Bailey, was also
removed from the vehicle, patted down for officers’ safety, but no drugs were found on his
person. During an inventory search of the vehicle, a bag of suspected crack cocaine was
discovered between the driver’s seat and center console. Thereafter, the officers arrested
Williams and Bailey.
{¶7} Williams confirmed that she was five months pregnant at the time of the
traffic stop; that she had been visiting her uncle, drinking alcohol, and smoking crack
cocaine. Williams telephoned Bailey and asked him for a ride home from her uncle’s
house. Bailey arrived a short time later and they left together.
{¶8} Contrary to what Williams told the officer at the scene that she had
purchased the drugs at the house she had just left, Williams testified that when they exited,
they saw a police cruiser drive by the house. Bailey handed her the keys and told her to
drive. Ultimately, the police cruiser pulled behind them and stopped the vehicle.
Williams testified that Bailey threw two bags of crack cocaine in her lap and told her to
swallow them. Williams stated she feared swallowing the crack because she was
pregnant, but she put one bag in her mouth and threw the other in Bailey’s lap.
{¶9} Barbara DiPietro of the Ohio Bureau of Criminal Identification (“BCI”)
testified that she tested the contents of the two seized bags and found the substance to be
cocaine-based crack cocaine. One bag contained 0.77 grams and the other 2.55 grams, for
a total weight of 3.3 grams.
{¶10} At the close of the state’s case in chief, Bailey moved the court for an
acquittal under Crim.R. 29. The trial court granted the motion relative to the charge of
possession of criminal tools and the forfeiture specifications. On August 19, 2011, the
jury returned guilty verdicts on the remaining charges. On August 25, 2011, the trial
court sentenced Bailey to a total of 18 months in prison.
Prosecutorial Misconduct
{¶11} In the first assigned error, Bailey argues the prosecutor engaged in
misconduct and deprived him of a fair trial by vouching for the credibility of Williams.
{¶12} The test for prosecutorial misconduct is whether remarks are improper and, if
so, whether they prejudicially affected substantial rights of the accused. State v. Boyce,
8th Dist. No. 93543, 2010-Ohio-3870, citing State v. Lott, 51 Ohio St.3d 160, 165, 555
N.E.2d 293 (1990). In reviewing allegations of prosecutorial misconduct, we review the
alleged wrongful conduct in the context of the entire trial. State v. Stevenson, 2d Dist.
No. 2007-CA-51, 2008-Ohio-2900, citing Darden v. Wainwright, 477 U.S. 168, 106
S.Ct. 2464, 91 L.Ed.2d 144 (1986). Thus, an appellate court must examine the entire
statement to determine whether the result of the proceedings would have been different
had the prosecutor not made the remarks at issue. State v. Treesh, 90 Ohio St.3d 460,
2001-Ohio-4, 739 N.E.2d 749.
{¶13} Bailey posits the prosecutor vouched for Williams’s credibility several times
during closing arguments. First, the prosecutor stated:
* * *[W]e heard the judge talk about candor and frankness, I don’t
know if there’s more of a frank witness that we could have than Betty
Williams coming in and telling us exactly what it was. * * * She came in
and told us exactly what happened. Tr. 346.
{¶14} Later, the prosecutor followed up the above remark by stating:
* * * How difficult was it for her to sit right here and tell a bunch of
people she doesn’t even know in this whole courtroom that she smoked
crack while she was pregnant. She smoked crack while she was
pregnant. And why did she do it? I asked her over and over again.
She was telling the truth. * * * [O]kay, think back, remember her
testimony. Her frankness. How she answered the questions quickly
and things like that. Tr. 386-387.
{¶15} We find the above excerpt of the state’s closing argument fails to satisfy the
above standard. The prosecutor’s summarization of Williams’s testimony, including how
difficult it was for her to testify that she smoked crack while pregnant, did not exceed the
prosecutor’s ability to comment on what the evidence has shown and what reasonable
inferences may be drawn therefrom.
{¶16} Considering the latitude granted to prosecutors and our review of the entire
record, we find that the prosecutor was not attempting to express his opinion regarding
Williams’s credibility. Rather, the prosecutor was pointing out that the jury could infer
that Williams was telling the truth because she was frank and candid enough to reveal that
she had smoked crack while pregnant.
{¶17} Here, the prosecutor’s statement did not invite the jury to reach its decision
on matters outside the evidence adduced at trial. State v. Hart, 8th Dist. No. 79564,
2002-Ohio-1084. As such the prosecutor’s comments were not improper and would not
have changed the outcome of the trial. Accordingly, we overrule the first assigned error.
Jury Instruction and Aiding and Abetting
{¶18} In the second assigned error, Bailey argues the trial court erred by
instructing the jury on aiding and abetting.
{¶19} Ohio’s complicity statute, R.C. 2923.03(A), provides, in pertinent part:
No person, acting with the kind of culpability required for the
commission of an offense, shall do any of the following:
(2) Aid or abet another in committing the offense; * * *.
{¶20} In order to constitute aiding and abetting, the accused must have taken some
role in causing the commission of the offense. State v. Sekic, 8th Dist. No. 95679,
2011-Ohio-4809, citing State v. Sims, 10 Ohio App.3d 56, 460 N.E.2d 672 (8th
Dist.1983). A person aids or abets another when he supports, assists, encourages,
cooperates with, advises, or incites the principal in the commission of the crime and shares
the criminal intent of the principal. State v. Johnson, 93 Ohio St.3d 240,
2001-Ohio-1336, 754 N.E.2d 796. Such intent may be inferred from the circumstances
surrounding the crime. Id. at 246, 754 N.E.2d 796.
{¶21} In the instant case, the description of how the events unfolded were subject
to disparate inferences. Nonetheless, viewing the evidence in the light most favorable to
the prosecution, as we are required to do, we have no choice but to conclude that the state
presented sufficient evidence of aiding and abetting. Specifically, Williams testified that
when they exited her uncle’s house and Bailey saw the police cruiser, he gave her the keys
to the car and told her to drive. Williams testified that when the police cruiser pulled
behind them, Bailey tossed the drugs into her lap and told her to swallow the crack.
Williams stated that she then put one bag in her mouth.
{¶22} While this evidence is not the only version before the jury, this is the
evidence that most supports the state’s case. As such, viewing the evidence in the light
most favorable to the prosecution, we conclude that the state presented sufficient evidence
of aiding and abetting. Accordingly, we overrule the second assigned error.
Police Report
{¶23} In the third assigned error, Bailey argues the trial court erred by refusing to
admit the police report as an exhibit.
{¶24} A trial court has broad discretion in the admission and exclusion of
evidence, and an appellate court must not interfere with that determination “[u]nless the
trial court has clearly abused its discretion.” State v. Hall, 8th Dist. No. 96680,
2012-Ohio-266, quoting State v. Apanovitch, 33 Ohio St.3d 19, 25, 514 N.E.2d 394(1987). An abuse of discretion “‘implies that the court’s attitude is unreasonable, arbitrary,
or unconscionable.’” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
124, ¶ 19, quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).
{¶25} Police reports are generally inadmissible hearsay and should not be
submitted to the jury. State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d
229; State v. Ward, 15 Ohio St.3d 355, 358, 474 N.E.2d 300 (1984).
{¶26} In the instant case, the police report, forming part of the record on appeal,
reveals information that substantially parallels the testimony presented at trial. As such
the evidence would have been cumulative. Accordingly, we overrule the third assigned
error.
Speedy Trial
{¶27} In the fourth assigned error, Bailey argues that he was denied a speedy trial
and the trial court should have granted his motion to dismiss. We find no merit to this
argument.
{¶28} In the instant case, Bailey was arrested on January 18, 2011. Applying the
speedy trial period from the day after Bailey’s arrest, the state was required to bring him to
trial no later than Tuesday, October 4, 2011, unless that period was tolled by some event.
The record indicates that trial commenced on August 17, 2011, 49 days before the speedy
trial period would have expired if there was no tolling event.
{¶29} Here, given that Bailey was brought to trial within 270 days, he has not
established a prima facie case for dismissal. Moreover, a review of the record indicates
that there were numerous tolling events as provided by statute. Events which, without
providing a line-by-line recapitulation of the trial court’s docket, tolled the statutory
period, but still did not prevent Bailey from being brought to trial before the speedy trial
time expired. As such, the trial court properly denied the motion to dismiss.
Accordingly, we overrule the fourth assigned error.
Sufficiency of Evidence
{¶30} In the fifth assigned error, Bailey argues his convictions were not supported
by the evidence.
{¶31} A challenge to the sufficiency of the evidence supporting a conviction
requires the court to determine whether the State has met its burden of production at trial.
State v. Givan, 8th Dist. No. 94609, 2011-Ohio-100, citing State v. Thompkins, 78 Ohio
St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. On review for sufficiency, courts are to assess
not whether the State’s evidence is to be believed, but whether, if believed, the evidence
against a defendant would support a conviction. Id. The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶32} Bailey argues the State failed to produce evidence that the substance in two
little bags was actually crack cocaine. However, Barbara DiPietro of the Ohio Bureau of
Criminal Identification (“BCI”) testified that she tested the contents of the two seized bags
and found the substance to be cocaine-based crack cocaine. As such, we find no merit to
this assertion.
{¶33} Bailey also contends there was insufficient evidence to sustain his
convictions because Williams’s testimony is not credible. However, issues of credibility
are irrelevant to a sufficiency of the evidence analysis. Thompkins at 390. As previously
discussed, Williams testified that the drugs belonged to Bailey, who threw them in her lap,
and instructed her to swallow them, when the police cruiser pulled behind their vehicle.
{¶34} Consequently, this evidence, if believed, would support Bailey’s convictions.
As such, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the charged crimes proven
beyond a reasonable doubt. Accordingly, we overrule the fifth assigned error.
Manifest Weight of the Evidence
{¶35} In the sixth assigned error, Bailey argues his convictions were against the
manifest weight of the evidence.
{¶36} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
the Ohio Supreme Court restated the standard of review for a criminal manifest weight
challenge as follows:
The criminal manifest-weight-of-the-evidence standard was explained in
State v. Thompkins, 78 Ohio St.3d 380, 1997 Ohio 52, 678 N.E.2d 541.
In Thompkins, the court distinguished between sufficiency of the
evidence and manifest weight of the evidence, finding that these
concepts differ both qualitatively and quantitatively. Id. at 386, 678
N.E.2d 541. The court held that sufficiency of the evidence is a test of
adequacy as to whether the evidence is legally sufficient to support a
verdict as a matter of law, but weight of the evidence addresses the
evidence’s effect of inducing belief. Id. at 386-387, 678 N.E.2d 541. In
other words, a reviewing court asks whose evidence is more persuasive
— the state’s or the defendant’s? We went on to hold that although
there may be sufficient evidence to support a judgment, it could
nevertheless be against the manifest weight of the evidence. Id. at 387,
678 N.E.2d 541. “When a court of appeals reverses a judgment of a trial
court on the basis that the verdict is against the weight of the evidence,
the appellate court sits as a ‘thirteenth juror’ and disagrees with the
factfinder’s resolution of the conflicting testimony.” Id. at 387, 678
N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct.
2211, 72 L.Ed.2d 652.
{¶37} Moreover, an appellate court may not merely substitute its view for that of
the jury, but must find that “in resolving conflicts in the evidence, the jury clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.” Thompkins at 387. Accordingly, reversal on manifest
weight grounds is reserved for “the exceptional case in which the evidence weighs heavily
against the conviction.” Id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983).
{¶38} Bailey argues Williams’s testimony, which we have discussed ad nauseam,
was not credible. However, while a reviewing court considers the credibility of the
witnesses in a weight of the evidence review, “that review must nevertheless be tempered
by the principle that weight and credibility are primarily for the trier of fact,” in this case
the jury, because they are in “the best position to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.” State v. Kash, 1st Dist. No. CA2002-10-247,
2002-Ohio-415, ¶ 25, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967).
{¶39} Consequently, after reviewing the entire record, we conclude that this case
is not the exceptional case in which the evidence weighs heavily against the conviction.
Accordingly, we overrule the sixth assigned error.
{¶40} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having been
affirmed, any bail pending appeal is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE
MARY J. BOYLE, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR